Luke and Warnock v Lane Cove Council
[2011] NSWLEC 1094
•08 April 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Luke and Warnock v Lane Cove Council [2011] NSWLEC 1094 Hearing dates: 22 and 23 November 2010 and 2 December 2010 (documents) Decision date: 08 April 2011 Before: Murrell C Decision: Appeal Upheld
Catchwords: DEVELOPMENT APPLICATION:
Erection of three storey dwelling; impact on views from neighbouring properties; impact of excavation on tree and adjoining property; and inconsistencies with Dwelling House CodeLegislation Cited: Environmental Planning and Assessment Act 1979
Lane Cove Local Environmental Plan 1987
Lane Cove Local Environmental Plan 2009Cases Cited: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
Tenacity Consulting v Warringah Council [2004] NSWLEC 140
Zhang v Canterbury City Council [2001] NSWCA 167Category: Principal judgment Parties: Ross Luke and Kaye Warnock - Applicant Representation: Mr P Tomasetti SC (Applicant)
Mr A Seton, Marsdens Law Group (Respondent)
File Number(s): 10655 of 2010
Judgment
The applicants in these proceedings are seeking to carry out major alterations and additions to an existing dwelling house on the land known as No 99 Northwood Road, Northwood on the western foreshore of Woodford Bay. The Council refused the development application and the applicant has appealed to this Court under section 97 of the Environmental Planning and Assessment Act 1979.
The land falls steeply from the road to Woodford Bay with the dwelling set back from the water about 40 metres. In addition to the brick and tile dwelling house to the east, there is a double garage on the southern boundary and a boat shed on the waterfront. The aerial photograph at Figure 1 shows the site in its context.
The subject site is a battle axe allotment and is comprised of three lots: Lot 1 DP 301423 - the access handle is 126 sq m; Lot 1 DP 128328 - the lot that contains the existing dwelling house is 600 sq m; and Lot 1 DP 942684 - the lot between the existing dwelling house and Woodford Bay is 574 sq m yielding a total site area of about 1300 sq m.
To the north of the subject site there is a three (3) storey dwelling house and pool constructed relatively close to Woodford Bay. To the immediate south there is a long driveway that serves a battleaxe waterfront with a two-storey dwelling house and pool orientated towards Woodford Bay. To the east of the subject site is a two storey dwelling known as No. 101 Northwood Road and this property has an eastern frontage to the road and a swimming pool adjacent to the common boundary with the subject site. The access handle for the subject site is on the northern boundary of No.101.
The proposal before the Court includes: alterations and additions to the existing three storey dwelling; an internal lift; internal alteration including extension to the ground floor; demolition and reconstruction of the top level (third storey); demolition of the existing garage; a new double garage with loft towards the east of the site including excavation for the garage; a pool to the west setback over 30 m and behind the foreshore building line.
The Statutory Planning Provisions
The subject development application was submitted prior to the gazettal of the Lane Cove Local Environmental Plan 2009 in February 2010 and the savings provision at clause 1.8A provides for the application to be considered under the planning controls in force at the time of lodgment. That is the Lane Cove Local Environmental Plan 1987 . Nonetheless the 2009 LEP is a relevant matter for consideration under s 79C of the Act.
Under the LEP 1987 the subject site is zoned Residential 2(a2) with a foreshore strip of about 10 m in width zoned Regional Open Space Reservation 9C.
Clause 9 (3) of the LEP 1987 requires the consent authority not to grant consent unless it is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out. The objectives of the residential 2A2 zone are:
To retain the existing residential amenity of detached single family dwelling areas. New dwelling houses or extensions of existing dwelling houses will be permitted only where they would not be highly visible when viewed from Lane Cove River or Parramatta River.
The respondent also refers to the Lane Cove Code and Development Application Checklist for Dwelling Houses, Fences, Private Swimming Pools and Outbuildings - August 2002 (Dwelling House Code) as relevant to the assessment of the application.
The Code for dwelling houses has a number of objectives including:
1.3 to provide guidelines for development, which retains and improves existing residential amenity of areas that are characterised by detached dwellings.
1.4 to provide appropriate controls which achieve a high standard of residential amenity on matters such as privacy, views, solar access, parking and open space/landscaping.
1.5 where a standard it is not complied with additional information supporting the request for variation to policy is required.
Under the design density and streetscape, the general objective includes that dwellings be designed with regard to site conditions so as to minimise their impact on the land form.
(b) Dwellings blend into the natural landscape
(c) Dwelling designs have regard to the amenity of adjoining properties.
The standard under these objectives is at a minimum cut and seal be limited to no more than 1 m and the preservation of existing trees.
The objectives for height are as follows:
(a) Control the height, bulk and scale of new dwellings and additions to existing dwellings so that they are in harmony with the surrounding buildings.
(b) Minimise disruption to existing views will to achieve reasonable view sharing from adjacent developments with the height and bulk of the development.
(c) Maintain reasonable solar access.
The code guideline is that no dwelling is to exceed a height of 7 m to any point on the uppermost ceiling and 9.5 m to the highest point of the roof, with height being measured from the natural ground level at any point. Clause 3 requires no dwelling to exceed two storeys and no dwelling would be permitted to have an elevation of more than three storeys. Clause 4 requires a third storey will be permitted if contained within the roof space where a dwelling would comply with the height requirement, except for the absence of a flat ceiling, a variation will be considered provided the objectives are satisfied.
The provision for landscaping at 3.9 requires 35% to be natural soft landscaped area.
The section for outbuildings, garages and carports is that they are to be of a design and use materials and colours that are compatible with the existing or proposed development and in keeping with the amenity of the adjoining development. Outbuildings shall not exceed 3.6 m in height and shall not be more than one storey, with the roof space may be designed or used as a loft or storage space.
The Lane Cove Local Environmental Plan 2009 zones the subject site as low-density residential R2. Clause 2.3 (2) states that:
The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
The objectives of the low-density residential zone include:
to provide the housing needs of the community within a low-density residential environment
to retain and where appropriate improve the existing residential amenity of a detached single family dwelling area
to encourage the dwelling houses or extensions of existing dwelling houses that are not highly visible when viewed from the Lane Cove River or Parramatta River
to ensure that landscaping is maintained and enhanced as a major element in the residential environment.
The objectives for the height of buildings and are as follows:
(a) To minimise any overshadowing loss of privacy and visual impacts of development on neighbouring properties, particularly where zones meet.
(b) To maximise sunlight for the public domain, and
(c) To relate development to topography.
The floor space ratio clause at 4.4 includes the objective:
(d) To ensure that the bulk and scale of development is compatible with the character of the locality.
The objectives are:
1.To provide dwellings in landscaped lots.
2.To ensure new dwellings and alterations and additions to existing dwellings are well designed and compatible with the surrounding context and enhance the streetscape within the area.
3.To achieve a reasonable level of amenity for both development sites and neighbouring dwellings.
The Lane Cove Development Control Plan of February 2010 contains a savings provision at clause 1.7 to the effect that applications lodged prior to its adoption are to determined as if this DCP had not commenced. Nonetheless the DCP provides guidance on the council's policies for the future and the more relevant provisions include the following:
The landscape area objectives are:
1.To provide privacy and amenity.
2.To retain and provide for significant vegetation, particularly large and medium-sized trees and provide for continuous vegetation corridors.
3.To conserve significant natural features of the site.
4.To assist with on site stormwater management.
The objectives for building design are:
1.Ensure new dwellings and alterations and additions reinforce the typical bulk and scale of existing dwellings within the Street and the area.
2.Ensure that alterations and additions maintain the integrity of the design and style of the existing building.
3.Ensure elevations to the street and public domain are well proportioned and designed.
4.Minimise impact in terms of overshadowing, loss of privacy, light spillage to adjoining properties, loss of views and amenity.
The provisions for height include a wall height of 7 m to the underside of the eave for any floor above ground level, to minimise bulk and massing and a maximum height of an undercroft area is to be 1.5 m. The maximum height for a pitched roof is 9.5 m above existing ground level, with provision for a 600 mm maximum height of a parapet. A maximum of two storeys is permissible at any point above ground level.
Section B .4 of the general controls has view sharing provisions and includes:
The sharing of all views is part of the character of the Lane Cove area and it should be maintained, where possible subject to how the view is obtained and whether the maintenance of such a view creates in unreasonable impost on adjoining landowners.
Views that are gained across other privately owned land are not as of right as some may depend on the property that his overviewed maintaining a lower scale that is achievable under the LEP or may become obscured over time due to the growth of landscape within private gardens.
The objectives for view sharing are
(a) To ensure that public view corridors between buildings or along streets are retained and enhanced from streets or public spaces.
(b) To minimise the impact of new development on existing public and private views and vistas.
(c) To preserve or fairly share water views for foreshore residents.
The provisions for view sharing in the DCP relevantly include:
(a) where existing views from public spaces are through the gaps between side setbacks of buildings, the length of the building roof of any proposal should be oriented towards the view in order to minimize view obstruction.
(b) existing or potential view corridors tot the water from the street are to be protected as public view corridors by ensuring that fencing to the front boundary is open in character.
(c) Garages and outbuildings are not to be located within the view corridor and the required side setback is to be clear of all built form obstructions. Lightweight carport structures may be considered in side setbacks.
(d) buildings on steeply sloping sites should adjust the height of the building envelope to follow the natural topography of the site.
(e) To facilitate view sharing for residential developments, flat roofs or low mono pitched roofs can be used where the design of the building and roof is integrated architecturally and where its appearance would be appropriate given the character of the street.
(f) Applicants may not be able to achieve the maximum permissible height, in order to cater and facilitate view sharing. In such cases, concessions shall be given for side and rear setbacks, subject to meeting the requirements for privacy, amenity and solar access to adjoining neighbours.
(h) Development is not to unreasonably affect existing water views from living areas of adjoining dwellings. Views from bedrooms are not considered to have the same significance unless they are the only available views within the dwelling.
(i) In such cases, the maintenance of the view will be tested against its reasonableness, i.e. how the view is obtained and where the view is gained. For instance views that are gained by leaning out a side window and looking obliquely across a number of lots will not be given weight against a view from the main living area window.
(j) Views will also be tested against the extent of view available. Where appropriate, the views will also be tested against the view sharing principles stated by the Land and Environment Court.
The general controls in part B, also provide provisions for development in foreshore areas. However, this applies to structures within 30 m of the mean high watermark and the proposed dwelling and pool structure are in excess of 33 m.
The DCP also contains provisions for landscaping and tree preservation guidelines. In the diagram at 1.6 for tree protection measures, the basic facts refer to, in general, 20% root loss can be tolerated by most species and cut or fill or trenching proposed on one side only in the primary root zone and not the critical root zone. The Local Environmental Plan 1987 contains a particular aim in relation to housing:
To maintain and where appropriate improve the existing amenity and environmental character of residential zones.
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 and Sydney Harbour Foreshores and Waterways Area Development Control Plan are relevant matters for assessment and these provisions relevantly focus on the proposed development when viewed from of the waterway.
Contentions
The respondent's Statement of Facts and Contentions identified the following contentions:
Height
1.The development application should be refused as the height of the proposed dwelling is excessive and does not comply with the standards of the Lane Cove Code and Development Application Checklist for Dwelling Houses, Fences, Private Swimming Pools and Outbuildings - August 2002 ("the Dwelling House Code") in respect of height.
PARTICULARS
(i) Clause 3.3 of the Dwelling House Code provides the following standards in respect of height:
Standards: No dwelling is to exceed a height of:
i. 7.0 m to any point on the uppermost ceiling;
ii. 9.5m to the highest point of the roof; above natural ground level.
No dwelling will be permitted to exceed two storeys in height above the natural ground level at any point. No dwelling will be permitted to have an elevation of more, than three storeys.
A third storey will be permitted if contained within the roof space.
(ii) 'Natural Ground Level
"the ground surface level prior to any cutting, filling and grading, and, where the existing ground level differs from the natural ground level, the. natural ground level shall be as determined by council."
(iii) Upon site inspection and a study of the survey, the location of the ground level appears to be substantially lower than the location claimed by the applicant.
(iv) The highest point of the roof, after removal of the roof gable. is 9.7 m which exceeds the maximum permissible height limit of 9.5m.
(v) The proposed maximum ceiling height is 9.4 m which substantially exceeds the maximum permissible ceiling height limit of 7.0 m. The height of the external wall on the south elevation substantially exceeds the maximum permissible ceiling height.
(vi) The proposed dwelling is three storeys in height. The third storey is not contained within the roof space.
2.The development application should be refused as the height of the proposed garage is excessive and does not comply with the standards of the Dwelling House Code in respect of Outbuildings that relate to height.
PARTICULARS
(i) Clause 6 of the Dwelling House Code provides the following standards in respect of Outbuildings (Garages. Carport etc.):
...S hall have a rise of not more than one (1) storey.
The roof space may be designed or used as a loft or storage space.
(ii) The garage appears to be two (2) storeys. The applicant claims that the upper portion of the garage is a loft. The section through the garage clearly indicates that the pitching point of the roof is higher than the flat roof of the garage.
(iii) The proposed loft is not considered to be contained wholly within the roof space and extends beyond.
Impacts on Views
3.The development application should be refused as it will have an adverse impact upon the amenity of the adjoining property towards the east (101 Northwood Road) in terms of existing views and does not achieve reasonable view sharing in that regard is inconsistent with the objectives of the Dwelling House Code in respect of height.
PARTICULARS
(i) The Objectives of clause 3.3 of the Code are to:
Minimise disruption to existing views or to achieve reasonable view sharing form adjacent development with the height and bulk of the development.
(ii) While the existing building is already three storeys, increase in the size and height of the third storey would exacerbate the impact upon views from the property towards the east.
(iii) The views from 101 Northwood Road likely to be affected, while not considered to be of iconic value are considered to be of reasonably high value.
(iv) The views being impacted are across the rear boundary of 101 Northwood Road and are therefore recognised as being more important and considered reasonable to protect.
(v) The impact upon views from 101 Northwood Road is from the main living area and in a standing position. The existing water views are not extensive. A substantial portion of the existing water views would be impacted, therefore it is considered that the impact on water views would be severe.
(vi) The existing building is already three storeys. The proposal would substantially increase the size of the third storey which would increase the impact upon views from the adjoining property towards the east. The proposal does not comply with the relevant planning controls which includes number of storeys. overall maximum permissible height and overall maximum ceiling height and is not considered reasonable. In this respect the view impact of a non complying development is not considered acceptable.
Potential for Dual Occupancy
6. The development application should be refused as the internal configuration of the proposed dwelling is such that it has a potential to be used as two dwellings.
PARTICULARS
(i) The subject application is not for a dual occupancy.
(ii) Two kitchens have been proposed.
(iii) The arrangement of doors is such that the lower ground floor and the ground floor can be accessed independently.
(iv) A new double garage has been proposed and the two existing car spaces have been retained. This would provide for a total of four (4) car spaces.
Excavation
7. The development application should be refused as the amount of excavation for the proposed garage is substantially in excess of the maximum permissible under the Dwelling House Code. The excessive excavation would have an adverse impact upon trees on the subject site.
PARTICULARS
(i) Clause 3.1 of the Dwelling House Code provides the following general standards:
Standards:
1 . A minimum of cut and fill on-site, limited to no more then 1 m cut or 1 m fill at any point on the site.
2. The preservation of existing trees
(ii) The proposed excavation for the garage is 2.4 m which is substantially in excess of the maximum permissible.
(iii) The excessive excavation would have an adverse impact upon a number of trees and shrubs and one Eucalypt tree located on the property towards the east.
(iv) The excessive excavation may impact adversely on the structural stability of the structures on the adjoining property towards the east.
Evidence and submissions
The Court met on site with the parties the first morning of the hearing and heard from resident objectors. The owner of No. 97 Northwood Road supports council's refusal of the application and considers the proposal is too bulky and will impact on views from the upper storey of her residence.
The owners of the adjoining premises to the east at number 101 also gave evidence to the Court and they are concerned about the increase in the width and height and bulk of the building and the impact on the water views obtained from their downstairs area. They expressed concern about the three-storey proposed dwelling and the height of the dwelling. In their opinion, the proposal should comply with the council's controls. They also expressed concern about the excavation for the proposed garage in terms of the stability of the rock wall on their western boundary that would disturb the soil below their swimming pool. They also expressed concern about the traffic on the right of carriageway, which in their opinion is of a minimum width and this will serve four parking spaces on the subject site. They also expressed concern about the large eucalypt on their property and the impact that the excavation for the proposed garage would have.
In response to the council advertising the proposal eight submissions were received initially and seven submissions were received in response to an amended proposal.
On behalf of the respondent Council, expert evidence was given by Mr Rajiv Shankar, senior planner of Lane Cove Council; and Mr Peter Maish, arborist. For the applicant Mr Jason Perica architect/town planner, and Mr Peter Castor arborist, gave evidence to the Court.
The planning experts agree that he proposed dwelling complies with the 9.5 m overall height provision contained in the Dwelling House Code but does not comply with the 7 m control to the uppermost ceiling, or with the maximum two-storey limit in the code. During oral evidence, Mr Shankar , agreed that the exceedences are in the southwest corner, 1.22 m of the 7 m control , and in the north-west corner 0.92 m.
Mr Perica states that the height requirements are contained in a code and not an environmental planning instrument and whilst this does not mean they should be automatically varied in his opinion the following factors support variation to the code's height controls in this instance because: the proposal meets the objectives relating to height in the code; the scale of the proposal is compatible with surrounding buildings and adjoining dwellings at 101A Northwood Road and 4A Birriwa Place contain 3 storeys and ceiling heights in excess of 8 m; the existing dwelling is 3 storeys in height and the proposal represents an extension of this level; the site and surrounds are steeply sloping and in such terrain compliance with height control is often difficult to achieve. Mr Perica said the Council itself varies the code's height controls in assessing DAs, and it is not a situation where the height limits have been strictly and slavishly applied, such that approval would set an adverse precedent. He is of the opinion the only impact is the view impact on number 101 and overall this impact is very minor.
Mr Shankar considers the height is excessive, and the code requires dwellings to be no more than 2 storeys, except where the third storey is contained within a roof space. He also refers to the fact that the height of habitable rooms in terms of the Building Code of Australia can be a minimum of 2.4 and the floor to ceiling height in the proposal is excessive at 2.7 m. Mr Shankar is of the opinion that the height of the proposed garage is excessive and does not comply with the standards of the code. He is of the opinion that the garage appears to be two storeys and the loft is not contained within the roof space. However, on cross-examination, he conceded that the code expressly allows for a loft and in this case it is not suitable for habitation, but only storage. He also conceded that the height of the garage is compliant with the code, that is 3.6 m and the size of 55 sq m is also complied with. Mr Shankar expressed concern about the amount of excavation for the garage, although he conceded that there is no control in the code for the amount of excavation for an outbuilding.
On the issue of impact on views the experts agree that the view impact relates only to views from 101 Northwood Road, and that the greatest impact is from the ground floor rear living area, in a standing position. Mr Shankar is of the opinion that the proposal does not achieve reasonable view sharing and is inconsistent with the objectives of the code, "to minimise disruption to existing views, or to achieve reasonable view sharing". Mr Shankar considers that while existing building is already three storeys, the increase in the size and the height of the third storey would exacerbate the impact upon views from the property towards the east at number 101, and while he does not consider these views to be iconic, he considers them to be of high value. He states that the impact upon views from 101 is from the main living area in a standing position and notes that the existing water views are not extensive from this level. He conceded on cross-examination that he based his view loss assessment initially on the fact that the height exceedence was greater and with the surveyor's markings he now notes the overall height is compliant. He also conceded that there were many examples since the code came into operation in 2002 of three-storey developments and Council has not strictly applied the code.
From the exercise carried out on the site inspection, Mr Shankar is of the view that the total amount of water view that would be lost in a seated position is half, although he conceded that one can barely see the water when sitting now, but to lose 50% of the view is not significant. It was noted that Mr Shankar had not assessed the sitting position view previously in his report. On cross-examination, Mr Shankar also conceded that he had not mentioned the view from the upper storey in his report and this is substantial. Having regard to this he was then asked to describe the impact of the proposal on the views gained from the whole of the property and he said it would not be severe or devastating, but moderate and the impact is from the non-compliant element. With respect to the impact of the view, Mr Shankar's position has changed from that of his report where he described it as severe.
Mr Perica on the question of view loss is of the opinion that the assessment of view loss must be balanced and while there is an exceedence of the 7 m ceiling height, the proposal fully complies with the 9.5 overall height and that a complying development would be significantly higher and create greater impacts with a ridge at 9.5 m, even with 7 m ceiling height compliance. He agreed on cross-examination that ceiling heights of 2.4 m as opposed to the proposed 2.7 m would lessen the impact but in his opinion the impact is acceptable, and he described the views from the ground floor at number 101 as filtered and obscured views, when sitting at the table with the pool fence forward of the view. In his opinion, there would be a loss of view from a sitting position of 25 to 30% of what views are available of the water.
Mr Shankar on the other hand considers that from a standing position, some 40 to 45% of the view would be lost and from a sitting position, approximately half the view lost, whereas Mr Perica considers this to be less than 25% and accepts that there is an impact on views however, the overall impact is very minor in the wider consideration of view impacts on both levels of number 101. He agrees that the impact on views is from the main living area, mainly in a standing position and the existing water views are not extensive from that area.
Mr Perica states that the best description of the views from 101 at Northwood Road, are contained in the submission from that property "At present, we enjoy a leafy outlook over the applicant's property filtered through shrubbery and trees". Mr Perica says that the view over the property will be maintained and it is true the main outlook is leafy and this leafiness will increase over time, to conceal the proposed roof from view from the ground floor and pool concourse of number 101. He further says that the views from number 101 are a combination of outlook, distant sky, district and water, filtered through trees and vegetation. He states that the proposal will have a minor impact on the water views from the lower pool concourse or ground level and will have virtually no impact on the views of the water from the first floor of number 101. Overall in his opinion water views affected are minor in proportional or percentage terms. He further states that ameliorative measures were proposed by the applicant, to improve views from number 101 (e.g. landscaping pruning). In this regard Council's bundle contains a copy of a memo dated 21 june 2010 from the owner of No.101 about the Avocado and Jacaranda near the south boundary and trimming and thinning the Melaluca and other vegetation to the west that have grown into the outlook from their house.
In terms of the principles in Tenacity Consulting v Warringah Council [2004] NSWLEC 140. Mr Perica says that:
(a) While there is a concentration on water view impacts the broader outlook and depth of outlook is afforded by greenery in the foreground and mid ground (the other side of the bay) and sky. These elements constitute the broader outlook and view.
(b) in terms of what part of the property is affected the ground level of number 101 is the extent of any real impact. This relates to a pool concourse level and adjacent indoor space. There will be negligible impact to the upper level of that dwelling or expansive, tree filtered water views are available.
(c) the extent of the impact is considered minor from the ground level and very minor overall when view impacts from the whole of the property are considered
(d) in terms of the reasonableness of the proposal the proposal is reasonable in the context of all the planning controls, the physical context of the site and neighbouring dwellings and the design and siting approach to the extensions. This is the case notwithstanding some technical and relatively minor non-compliances with some of the height controls in council's code.
On the contention that the application should be refused as it has the potential to be used as two dwellings this is premised on the basis that there are two kitchens and the arrangement of doors to the lower ground floor and ground floor can be accessed independently, together with the new double garage and onsite parking providing a total of four car spaces.
Mr Perica states that the proposal is not for two dwellings, and that the kitchens have existed prior to the applicants purchasing the site and were shown as existing in an application approved by the council in 1997. The lower kitchen operates to service the yard and lower ground floor entertaining area. Mr Perica further states that while dual occupancy is permissible on the site, this is not proposed and that the layout particularly the internal lift does not suit a dual occupancy and the proposed car parking makes use of an existing garage and circulation space to provide convenient parking for occupants and visitors, because this is a battle axe allotment removed from the street by a steep driveway. The applicant is also prepared to accept a condition that the proposed dwelling not be used as a dual occupancy.
The council contends that the excavation for the garage is excessive and would have an adverse impact on a number of trees and shrubs, and one eucalypt tree located on the property towards the east. Council also contends that the excessive excavation may impact adversely on the structural stability of the structures on the adjoining property at number 101.
Mr Perica states that while the excavation is in excess of the code that is only if the code applies to outbuildings, and in his view it is not excessive in the context of overall excavation for the proposal. With respect to the impacts on trees and geotechnical matters, Mr Perica says this has been addressed by other experts and through conditions of consent. He accepts that the excavation exceeds 1 m in depth of the garage to a maximum of approximately 2.4 m in depth. Mr Perica states that there is negligible impact from the proposed garage on neighbours and that the proposed garage structure meets the objectives of the code, in that the garage has regard to the natural landscape and the amenity of adjoining properties and the proposed excavation has the benefit of reducing the height of the garage for adjoining properties.
The question of the impact on number 97, Mr Shankar is of the opinion that there is not significant detrimental impact and Mr Perica considers the impact to be negligible.
The planners prepared a further joint statement on the provisions of the 2009 LEP for Lane Cove gazetted in February 2010 and the Development Control Plan 2009. I now note that at the end of their first report they agreed that the savings provisions provided a determination of this application under the former regime by virtue of the savings provision. They also agreed that "the new plans are a relevant consideration under s79c , although the new provisions are such that no material new issues arise in relation to the court case, despite differences in definitions and the like in the new Plans".
Under the LEP 2009 the maximum permissible floorspace ratio under the R2 low-density residential zone is 0.5:1 in cl 2.2 and the proposed development is 0.37:1. The control for maximum permissible height is 9.5 and the proposal is 9.74 and the LEP allows an architectural roof feature to exceed this if it does not contain floor space. An additional 1.5 m in height is allowed if there is a sub-floor. The provision for minimum landscaped area is 35% and the proposal provides 37%. The control for wall height is 7 m and the proposal on the north side is 5.8 m, however, on the south side, it is 9.23.
The DCP 2009 requires a set back from existing trees that are greater than 5 m in height, to be a minimum of 3 m.
The arborists provided a joint statement and concurrent evidence to the Court on the impact of the development on trees and the contention that the excavation for the garage would impact, in particular on the Sydney Red Gum . Mr Castor states that the depth of excavation is of less relevance than the lateral offset to the particular trees and the tree protection zone encroachments. In his opinion ample contiguous root breakout areas exist to provide for post development root growth to compensate for TPZ encroachment. Mr Maish considers that the proposed excavation of 2.4 m in depth for the garage, will alter the current growing environment of trees numbered 2, 3, 6 and 7 and that water and nutrient availability will be reduced, because of the loss of soil profile. He further comments that this is likely to have a negative impact on tree 7 in particular, given its maturity classification and size.
The trees identified on the property and adjoining properties that may be affected by the location of the garage as shown on the plans are as follows:
Tree 1 Avocado to be removed as within the footprint of the proposed courtyard. Mr Maish raises no objection to the removal of this tree given its untenable position in the garden.
Tree 2 Jacaranda , this tree requires an arborist's assessment during earthworks, Mr Maish states that it should be retained. He also notes that it could be removed under the TPO if root damage is severe.
Tree 3 Lemon scented gum . It is agreed that this is of high significance and should be retained. Mr Castor said that the closest excavation is 3.5 m and considers there is ample root breakout areas for post development root growth. Mr Maish considers the development is unlikely to result in the decline or loss of the current good heath of this young and vigorous tree. However available root zone area will be reduced because of excavation.
Tree 4 Mulberry, located on neighbouring property, the experts agree that this will not be impacted and also note that is exempt from the Lane Cove tree preservation order and the works are beyond the TPZ.
Tree 5 Jacaranda located on neighbouring property, the experts agree that the development will not impact on this tree.
Tree 6 Cotton palm . Mr Castor notes that it is of high significance and has a high retention value. Mr Maish notes that no mechanical damage to this tree would occur, however growing environment will be altered, but negligible.
Tree 7 Sydney Redgum , located on neighbouring property. The experts disagree on the impact to this tree. Mr Castor considers the tree is of exceptional significance and should be retained. The closest excavation being approximately 6 m and that there is ample contiguous root breakout areas to provide for post development root growth to compensate for TPZ encroachment. Mr Maish states that the growing environment will be altered because of the reduced root zone area and the 2.4 m depth of excavation may draw available water from the retained soil profile. He states that this is a mature tree of approximately 100 years old and any changes to its growing environment will result in decline of the health of the tree.
Tree 8 Argyle Apple located on neighbouring property. The experts agree the development will not result in a negative impact on the health or current structural integrity of the tree. However, Mr Maish says that because of the 60 lean, the tree will fail and the proposed building is within the target area of the tree. Mr Castor said that he tree lean is likely to date from the neighbours' pool construction, and there is ample contiguous root breakout areas to provide for post development root growth to compensate for TPZ encroachment.
Tree 9 Frangipani , the experts agree that this is of moderate to low significance. However, it can be transplanted to the north side of the existing drive as shown in the plan.
Shrubs. Mr Maish notes that these are not covered by the TPO, and these need to be removed to allow the proposed garage construction.
Figure 5 shows the location of the above trees, in relation to the proposed double garage.
The main area of disagreement between the arborists is that Mr Castor considers that the excavation for the proposed garage will have a negligible impact on the Sydney Red Gum , tree 7 and having regard to the Australian standard, the tree would remain viable in terms of the tree protection zone. The radius of the tree is some 10.2 m and the garage encroaches into this, being a distance of 6 m, for a sector that he estimates to be less than 10%. Mr Maish was asked whether there was anything else in the TPZ area impacting to which he responded, "No not from mechanical damage to the root system of the Sydney Red Gum ." Mr Castor said that the minor encroachment of less than 10% is outside the structural root zone, and that this area could be compensated for future root growth under the driveway, because trees are opportunistic.
Mr Maish however said that there would be no compensation to the area excavated because of the age of the tree and that any change would be more than a negligible impact. He further stated that the excavation will change the water regime. He agreed that there would be no impact to the structural roots and that no roots would be larger than 6 to 8 mm and the cutting of these roots is not of concern to him. Mr Castor says there will be no interception of the overland flow with the excavation as it is downhill of the tree.
Mr Maish said that planting of 20 Lilli-pillies along the boundary is also of concern in terms of the accumulation of changes leading to significant change for the Sydney Red Gum.
Mr Tomasetti put to Mr Maish that the area of incursion is only 5.5%, 18 sq m and with a 10.2 radius, this provides for 320 sq m and that there is other infrastructure within the TPZ that was constructed prior and some post the tree, such as the swimming pool at number 101, and that this had not created any impact on the health and vigour of the tree and Mr Maish agreed that the tree has withstood these other works. Mr Maish is also concerned about the effect on the Argyll Apple and the negative impact on the landscape.
With respect to the Jacaranda that is in close proximity to the retaining wall for the stairs from the garage the previous report by Bradshaw described this as of poor form and if removed the Lemon Scented Gum would prosper. It was also noted that removal would be allowed under the TPO.
The question was asked of Mr Maish, if there are no further works or site disturbance for landscaping, in the TPZ, then the 5.5% of the TPZ that is affected by the position of the garage it was agreed is correct. Mr Castor considers that the tree is capable of withstanding the excavation and construction of the garage, whereas Mr Maish disagrees because of its classification of its maturity.
Findings
In my overall merits assessment of the development application under s 79C I have taken into consideration the planning regime, the evidence of the experts and residents, and the site inspection. The Court in its assessment recognizes that neighbours may not always embrace change, however, that is not the test and the role of the Court is to assess whether an application is satisfactory when assessed against council's planning regime and to determine whether impacts are reasonable or unreasonable in the circumstances of the case.
In terms of the code the proposal complies with the 9.5 m height requirement, however it exceeds the 2 storey requirement of the code and 7 m to the uppermost part of the ceiling. To assist in my consideration, the parties referred me to judgments of this Court. The case of Stockland Development Pty Ltd v Manly Council [2004] NSW LEC 472, of McClellan CJ states:
To my mind the matters which are relevant in determining the weight to be given to planning policy adopted by council are as follows:
the extent if any of research and public consultation undertaken when creating the policy;
the time during which the policy has been in force and the extent of any review of its effectiveness;
the extent to which the policy has been departed from in prior decisions;
the compatibility of the policy with the objectives and provisions of relevant environment planning instruments and development control plans;
the compatibility of the policy with other policies adopted by council or by any other relevant government agency; and
whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area.
I accept that the code was adopted in 2002, however, from the site inspection it could be seen that the code has not been consistently applied or strictly adhered to in the granting of consent to other dwellings in the vicinity of the subject site in particular, the three-storey requirement. In assessing the application I have also had regard to a holistic consideration of the code, and while it is not a development control plan and therefore of less weight, I have made the code a fundamental element in my assessment. In saying this I am also guided by the authority of Zhang v Canterbury City Council [2001] NSWCA 167 wherein at paragraph 74 is stated " a development control plan is not an 'environmental planning instrument'...Furthermore, a proscription by s76B of any development prohibited by an environmental planning instrument does not extend to a prohibition in a DCP. Nor can such a plan contain a 'non-discretionary development standard' which if complied with would take away a consent authority's discretion under s79C(2)." I have considered the guidelines in the context of the planning regime and the individual circumstances of this case.
In the judgment of Tenacity Consulting v Warringah Council [2004] NSW LEC 140, Roseth SC established a planning principle for assessing developments and its impact on views. In this case, cl 36 of the LEP states that development is to allow for the reasonable sharing of views, and in deciding whether or not view sharing is reasonable, he adopted a four step assessment as follows:
The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.
The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.
The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but m many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.
The fourth step is to assess the reasonableness of the proposal
that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.
In applying the above principles to the application before me, the view can be described as a filtered view of the water above the existing roof of the subject property to the western foreshore of Woodford Bay and from inside the ground level this is obtained mainly from a standing position and on the deck adjoining the dwelling and the swimming pool area. This water view is within a broader context of the foreground of the swimming pool of number 101, the mid-ground of the structure and roof of 99 through to the water view, over the subject land. From the upstairs level of number 101, there is a television room and adjoining deck, where views are obtained to Hunters Hill to the south and views over foreshore properties, including the subject property, from the northwest through to the southwest. From a sitting position in the downstairs living area of number 101, there is only a small view of the water over the existing roof of the subject property, the main feature being vegetation that is contributed to by many properties. The view of the water from a seated position is very limited compared to views from the upstairs and in the context of the overall views afforded to this property. Refer to Figures 2 and 3.
The planning principle requires consideration of the views from the whole of the property, even though it is not contended that the impact on views from the first-floor living and balcony area is an issue. In my assessment from the site inspection it could be seen that the proposed development would have a minor effect on the water views having regard to the totality and extent of views from the whole of the dwelling.
For the downstairs living area the impact of the proposed development on the view from a standing position in my assessment would be minor at the highest. In my assessment the land water interface will generally be maintained, although I recognise that there is a difference between high and low tide when viewed from number 101. From a sitting position downstairs the water view is currently very limited and to gain a greater appreciation of the view this will generally be maintained from the upper level of number 99. In my assessment the proposed development minimises the disruption from the view and I agree with Mr Perica that a roof design to the maximum height of 9.5 m, could have a severe impact on the views enjoyed from number 101 and having regard to the guidelines I am satisfied that the proposed design has regard to the view sharing principle and minimizes view impact. The test is not that there be no impact.
The respondent argues that the impact of the non complying elements, that is in the southwest side of 1.22 m and on the northwest side of 0.92 m is unacceptable. However, in my assessment, a roof that achieves the maximum height in the centre would have a greater impact on views and possibly in the centre of the view line. A roof of such a design, while it may be compliant, would not minimise disruption to views. The question for the Court is whether the impact of the non complying portions of the building are unreasonable in the circumstances of this case.
I am satisfied the design achieves reasonable view sharing in the context of the 9.5m overall height limit and the exceedence of the storeys limitation and the ceiling height would not warrant refusal of the application. The surveyors report states that "the uppermost ceiling is at RL 26.32 and has a maximum height above natural ground of 8.22m that part of the parapet wall which is below the ceiling line and which is higher that the 7m is about 7.7% of the faade of the parapet wall below the ceiling line. Refer to Figure 4. The elevations also show that 100% of the proposed residence will be below the 9.5m height limit to the highest point of the roof".
In my assessment the exceedence on the southwestern side and the northwestern side overall has a minor impact on views. I must have regard to the overall impact of the proposal on the views from both levels of number 101, in the context of what a compliant development with a pitched roof of two storeys would have, and what part of the water view would be impacted, compared to the proposal, that is compliant with the overall height limit of 9.5 m, but not the number of storeys and ceiling height.
In my merits assessment a relevant consideration is that the Council has not consistently applied the code, nonetheless I have assessed the proposal carefully against all of its provisions. In my overall assessment, I have determined that the proposal allows for appropriate view sharing and is not unreasonable.
The proposed double garage has a pitched roof and falls within the 3.6 m height restriction of the code. Mr Shankar agreed that it is not a two storey structure and complies with council's controls. Although in his opinion the development has potential for use as a dual occupancy as there are not only two kitchens and the layout of the floor plans with independent access to the outside, but because of the proposed double garage with two existing car spaces to be retained. In my merits assessment the built form of the double garage and parking spaces are satisfactory for the single dwelling. It is also appropriate that the two blocks of land be consolidated prior to the occupation of the development and the overall floorspace ratio of the proposal is less than council's code and the LEP 2009.
It is not unusual in a property of this size, for both a main kitchen and secondary kitchen to service the outdoor living area and ground floor and the double garage and additional parking spaces is consistent with the size of the dwelling and allows for convenient access. I am satisfied the provision of a second kitchen and the parking does not constitute two dwellings and the council has proposed a condition for the development to be used as a single dwelling, and the applicant does not objected to this.
The contention that excessive excavation is required to accommodate the double garage, and that this would impact on the existing trees, has been considered with the benefit of the arborist's expertise. The 1 m cut and fill would appear to apply to dwelling houses, as opposed to outbuildings and garages. I am satisfied that because of the steepness of the land, excavation to 2.4 m is required to establish levels for access to the garage. In my assessment, the amount of excavation is not unreasonable to allow the provision of a garage for the residence given the slope of the land and whether the control applies to outbuildings or only to dwellings. The garage structure has a maximum height of 3.6m and is below the concourse of the pool at No.101 and will not lead to an obstruction of views from this dwelling. In my assessment, the important issue in the circumstances of this case is whether there will be an adverse impact on the Sydney Red Gum. That is Tree No. 7 as shown on Figure 5.
The Australian Standard AS 4970 - 2009 at Appendix D refers to minor 'encroachment into the tree protection zone' and provides guidelines for reducing the impact of incursions where there is less than 10% encroachment into the TPZ and outside the structural root zone SRZ, with any loss compensated for elsewhere. The Sydney Red Gum it is agreed is a significant tree to be retained with a SULE of 40 plus years. This is located on the adjoining property as shown in Figure 5.
On the basis of the evidence to the Court it is agreed that there will be no structural root damage and there would be no roots larger than 6 to 8 mm and the cutting of these roots is of no concern to Mr Maish. The radius of the tree is 10.2 m and the garage at a distance of 6 m is an incursion into the Tree Protection Zone of less than 10%, about 5.5% and Mr Castor's evidence is that this root growth area would be compensated under the driveway given tree roots are opportunistic. Mr Castor is also of the opinion that the excavation will not intercept the overland flow as it is downhill of the tree. I am persuaded by Mr Castor's evidence that with appropriate conditions and tree protection measures the excavation and construction of the garage will have a minimal impact on the Sydney Red Gum. The experts provided appropriate conditions for protection measures, including to ensure minimal disturbance of the ground in the vicinity of the Sydney Red Gum and these conditions are to be imposed .
In my overall assessment of the development application having regard to the planning regime, the evidence of the experts and residents, and the site inspection I have determined that the application warrants approval.
Orders
Accordingly based on my assessment above, the formal orders of the Court are:
(1) The appeal in respect of the property known as number 99 Northwood Road Northwood is upheld.
(2) The development application submitted to Lane Cove Council, and as amended is determined by the granting of consent, subject to the conditions in annexure A.
(3) The exhibits are returned to the parties, with the exception of: the architectural plans (exhibit B); the joint planners report (exhibit 4); and the conditions (Exhibit 7).
J S Murrell
Commissioner of the Court
Attachment A
Decision last updated: 29 April 2011
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